NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
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No. 11-4465
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ROBERT KEVIN OHLER,
Appellant
v.
MARIROSA LAMAS; ATTORNEY
GENERAL OF THE COMMONWEALTH
OF PENNSYLVANIA, TOM CORBETT;
DISTRICT ATTORNEY OF THE COUNTY
OF SOMERSET
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 3-11-cv-00011
District Judge: The Honorable Kim R. Gibson
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 9, 2013
Before: SMITH, ALDISERT, and SLOVITER, Circuit Judges
(Filed: October 1, 2013)
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OPINION
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SMITH, Circuit Judge.
The United States District Court for the Western District of Pennsylvania
dismissed Robert Ohlers petition for writ of habeas corpus on the grounds that Ohlers

claims were untimely and procedurally defaulted. Ohler argues on appeal that the statute
of limitations for his habeas claim should have been equitably tolled and that his
procedural default should have been excused by the ineffective assistance of his postconviction counsel during collateral proceedings in state court. For the reasons that
follow, we will affirm.
I.
Robert Ohler pled guilty to third degree murder in the Court of Common Pleas of
Somerset County, Pennsylvania (Court of Common Pleas) and was sentenced to 20 to
40 years imprisonment. On October 5, 2006, Ohlers post-sentencing motions were
denied and he was given 30 days to appeal his sentence. Although Ohler alleges that he
instructed his trial counsel to file a notice of appeal, such notice was never filed and his
conviction became final on November 5, 2006.
Between October 5, 2006 and October 23, 2008, Ohler claims to have sent an
unspecified number of letters to his trial counsel inquiring about the status of his appeal.
He also alleges that none of these were answered. Ohlers family members also contend
in an affidavit that, on one occasion during this period,1 Ohlers trial counsel assured
them that he would discuss the appeal with Ohler during their next visit. One of these
family members, Brenda Ohler, further claims that sometime in 2008 she received
additional assurance from Ohlers trial counsel that an appeal would be filed. On
October 23, 2008, Ohler first contacted the Court of Common Pleas to inquire about the
status of his appeal. According to Ohler, he received a response on July 29, 2009 from

the Pennsylvania Superior Court indicating that his appeal had not been filed.
On August 26, 2009, Ohler filed a claim in the Court of Common Pleas under
Pennsylvanias Post Conviction Relief Act (PCRA). Although this claim was filed
long after the PCRAs one-year statute of limitations had expired, Ohler argued that the
delay was excused under 42 Pa. Cons. Stat. 9545(b)(1)(iii), the PCRAs exception for
newly recognized constitutional rights. The Court of Common Pleas rejected this
argument and afforded Ohler 20 additional days to respond to the Courts Notice of Intent
to Dismiss. Ohler advanced no further argument, and the Court of Common Pleas
dismissed Ohlers PCRA claim on March 8, 2010. Ohler timely appealed to the Superior
Court of Pennsylvania, which affirmed on November 23, 2010.
On January 13, 2011, Ohler petitioned the Western District of Pennsylvania for a
writ of habeas corpus pursuant to 28 U.S.C. 2254. Relying heavily on the Magistrate
Judges Report and Recommendation (R&R), the District Court dismissed the petition
on the grounds that the petition was untimely under the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. 2244(d)(1), and that Ohlers claims had been
procedurally defaulted in the Pennsylvania courts. This appeal followed.
The District Court had jurisdiction under 28 U.S.C. 2241 and 2254, and we
have jurisdiction under 1291 and 2253. Our review of the District Courts rulings on
timeliness and procedural default is plenary. Reinhold v. Rozum, 604 F.3d 149, 151 (3d
Cir. 2010); Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009).

Or, at least, sometime prior to July 14, 2010, when the affidavit was filed.

II.
We agree with the District Court that Ohlers petition is untimely under the
AEDPA and not entitled to equitable tolling. The AEDPA requires federal habeas
petitions to be filed within one year of the date on which the judgment became final
unless certain exceptions are met.2 See 28 U.S.C. 2244(d). Here, Ohlers judgment
became final on November 5, 200630 days after he failed to file his appeal following
denial of his post-sentencing motions. See Pa. R. App. P. 903(a). Ohler did not file his
habeas petition until January 13, 2011. Without the benefit of equitable tolling, his claim
is unquestionably time barred.
For equitable tolling to apply, Ohler was required to demonstrate (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)
(internal quotation marks and citation omitted). While the diligence requirement does
not require the maximum feasible diligence, . . . it does require reasonable diligence in
the circumstances. LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005) (internal
quotation marks and citation omitted).
As the District Court explained in its well-reasoned opinion, Ohlers actions fell
short of reasonable diligence. Ohler waited nearly two years with little or no
communication from counsel before contacting the Court of Common Pleas and waited
an additional nine months for a response, all the while doing nothing to protect his

interests. We agree with the District Court that these efforts constituted a far cry from
the diligence demonstrated by the petitioner in Holland, where as soon as
communications slowed down and ceased, the petitioner . . . wasted no time in
contacting the state courts.
For the reasons expressed by the District Court, we are also unpersuaded by
Ohlers argument, raised for the first time in an objection to the R&R, that equitable
tolling was appropriate because Ohlers consumption of various prescription medications
placed him in a fog.
Because we hold that Ohlers petition is untimely under the AEDPA, we need not
reach the merits of his claims. We also need not reach the question of whether Ohlers
claims were procedurally defaulted in the Pennsylvania courts.3
***
Accordingly, we will affirm the judgment of the District Court.

Ohler has not claimed that any of these exceptions apply.

3
Specifically, we need not address Ohlers argument that the Supreme Courts recent decision in Martinez
v. Ryan, 132 S. Ct. 1309 (2012) would allow him to avoid procedural default by demonstrating the ineffective
assistance of his post-conviction counsel during the PCRA proceedings. Additionally, we reject Ohlers Martinezbased constitutional claim of ineffective assistance of his post-conviction counsel, as Martinez explicitly refused to
provide this cause of action. See id. at 1319 (contrasting [a] constitutional ruling [that] would provide defendants a
freestanding constitutional claim to raise with the equitable ruling of this case).